P L D 1985 Lahore 512 (PLP)

Mst. Shahnaz filed this revision praying that "this petition may kindly be accepted and the condition imposed in the impugned order dated 3-7-1985 passed by the learned Additional Sessions Judge, Multan, may be set aside and the petitioner maybe released on bail".

4. It is contended by both the learned counsel appearing in these two revisions that the condition imposed in the impugned bail orders being illegal be set aside.

5. I have heard both the learned counsel at some length and have myself gone through various judgments relevant to the facts of this case. 6. . It will be observed that so far as the main bail orders in both the cases are concerned, no condition as regards the bail bonds or release of the petitioners from prison after acceptance of the bail bonds has been attached. The only condition imposed in both these orders is regarding the person who should stand surety for the respective petitioners. I agree with the proposition that a conditional order of bail cannot be passed. As observed above, both the bail orders do not impose any condition with respect .to the release on bail of the petitioners or on acceptance of the bail bonds. In my view, the relevant law which governs this situation is laid down in section 499, Cr. P. C. which is re produced below : "499.-(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the Police Officer or Court, as the case may be. (2) If, the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge." A perusal of this section would indicate that; firstly, bail bond is to be in the sum which a Police Officer or Court thinks sufficient; secondly, it is to be executed by such person who is to be released on bail as well as by the surety and; thirdly, on the condition that such person who is being released on bail shall attend proceedings at the time and place or as otherwise directed by the Police Officer or Court, as the case may be.

7. It will be proper at this stage to examine various judgments cited at the Bar. (i) Mian Mahmood Ali Qasuri and others v. The State P L D 1963 S C

478. The facts of this case are that Mian Mahmood Ali Qasuri and others were being prosecuted for an offence under section 124-A, P. P. C. in the Court of a Special Judge at Multan on the basis of a resolution alleged to have been passed at a meeting of the National Democratic Front on 28-1-1963 at Karachi, which was said to have been attended by the appellants. An application for bail was moved before the High Court of West Pakistan at Lahore. Mr. Shabbir Ahmad, Senior Counsel for the appellants expressed his agreement to the incorporation of a condition in the bail bond to the effect that the appellants will undertake not to deliver any speech of the kind reflected in the resolution in question. A conditional bail order was passed by the High Court. When the bail bonds were taken to Jail for signatures of the appellants, they declined to avail themselves of the conditional bail granted to them. Another application for modification of the bail order was, therefore, moved which was declined by the High Court. The appellants were granted Special Leave to Appeal by the Supreme Court to consider the question whether a bail order can be subjected to a condition. I am of the view that judgment in Mahmood Ali Qasuri's case is not applicable to the facts of these revisions. My reasons for this view are; firstly, that the question, whether a bail order can be subjected to a condition of this kind at all without its incorporation in a bail bond, was not considered in the circumstances of Mian Mahmood Ali Qasuri's case as their Lordships considered only a limited question whether such a? condition can be incorporated in a bond required to be executed by sureties when a person is granted bail; secondly, the appellants in Mian Mahmood All Qasuri's case and their sureties were required to execute a bond undertaking that the appellants will not deliver any speeches of the kind reflected in the resolution in question which is not the case in two revisions presently in hand and; thirdly, the condition of execution of undertaking in the bail bond was made a condition precedent before release of Mian Mahmood Ali Qasuri and others from prison. The learned Judges of the Supreme Court had only held that the power of a Court in requiring an undertaking from an accused person to desist from the repetition of the offence with which he is charged as a condition precedent to the grant of bail did not exist and that such a condition could not be incorporated in a bail or surety bond itself. A perusal of the two impugned orders would clearly show that there was no order to incorporate any condition in the bail or surety bond itself. As such Mian Mahmood Ali Qasuri's case cannot be made applicable to the facts of the present case. Whenever accused is allowed bail, it is for the Court to' examine whether the bail bond and the surety furnished by the accused is to be accepted or not. Every Court can, therefore, insist on a particular surety in order to ensure that the accused will appear in proceedings of the case on each and every date of hearing. It may be observed that the situation in Hudood cases specially when it is a question of release on bail of a woman, accused of Zina, has to be considered in totally different prospects. (ii) Abdul Ahad v. The State 1970 P Cr. L J 1256: In this case Abdul Ahad petitioner was arrested on charge of theft of motor cars in five cases. He was allowed bail by A. C. M. Court No. 24, Karachi, who fixed Rs. 5,000 as surety in each case. One of the conditions was that this amount had to be deposited in cash. It was held by learned Judge-in-Chamber that no cash surety could be insisted upon. The condition of cash payment was, therefore, set aside. This judgment is not applicable to the facts of this case because no order of cash payment has been made in the two cases before me. (iii) Abdur Rehrran v. The State 1985 S C M R 542: Abdur Rehman was convicted under sections 17, 18 and 22 of Immigration Ordinance and sentenced to two years' R. I. and a fine of Rs 50,000 or in default whereof further R. 1. for one year. The High Court suspended his sentence of imprisonment only and directed that the bail will be allowed and the petitioner will be let out of prison only if he pays the amount of Rs. 50,

000. This order of High Court was challenged in the Supreme Court. The learned Judges held that no condition on the grant of bail order could be imposed. This judgment is also not applicable to the. facts of these revisions. The two impugned bail orders do not contain any such condition. There are certain judgments in which the conditions as have been imposed in the two impugned orders, were not disapproved or set aside, which are discussed as follows : (i) Maulana Fateh Muhammad v. The State P L D 1973 Lab. 874: Maulana Fateh Muhammad was challaned in five cases under section 13-A of the West Pakistan Maintenance of Public Order Ordinance, 1960. He was admitted to interim bail on 6-3-1973. The learned Judge in-Chamber .confirmed the order of interim bail dated 6-3-1973 subject to his giving an undertaking that he will not indulge in abusive language or insulting insinuations in the course of his public speeches. (ii) Malik Ghulam Jillani v. Station House Officer P -L D 1975 Lab. 210: In this case Malik Ghulam Jillani was allowed by the High Court. He went out of the Court Room though his counsel was still present inside the Court Room. At that time, the A. A.-G. requested the learned Judge that some condition be attached with the bail granted to the petitioner so that he may not make any insinuating speech. The learned Judge sent for Malik Ghulam Jillani who returned to the Court Room and was told about the prayer of the A. A.-G. and was asked to give an undertaking that he shall not intentionally or consciously commit any of the offences mentioned in the F. I. R. On this he spontaneously uttered that he had no intention of committing any offence. No further order in this behalf was passed by the learned Judge. In any case no objection to such a condition was taken at that time. (iii) Mst. Kalsoom v. Rehmat Ali and another 1983 P Cr. L J 1411: Mst. Kalsoom was accused of offence under section 10/11 Ordinance VII of 1979. She was allowed bail and her father was allowed to stand surety for her because she had filed a suit for dissolution of her marriage against her husband and, therefore, her father was the appropriate person to stand surety. Mst. Kalsoom challenged the said order praying that she apprehends danger to her life from her father, therefore, the condition placed by the learned Additional Sessions Judge that her father should be her surety to quashed and that she be allowed to be released on the surety of some independent person. The petition of Mst. Kalsoom was dismissed. However, exercising revisional jurisdiction the learned Judge-in-Chamber modified the order of trial Court to the extent that any one of her close relations including her grandfather etc. may be her surety in the case but not the associates of her co-accused. It was observed by the learned Judge that the surety will have no right to claim her custody because he was only a surety and not a custodian of the person of the accused. (iv) Mst. Nasim Akhtar v. The State 1983 P Cr. L J 1990: Mst. Nasim Akhtar was allowed bail in a case under Ordinance VII of 1979 -against her and one Nazir. Her parents presented surety bonds and such Robkar went to the Jail for her release. She refused to go out on the ground that she would not accompany her parents and would like her husband Nazir and her party men to stand surety for her. This gave rise to a controversy which was resolved by the learned Additional Sessions Judge who ordered that the bail bonds may be furnished by a person relating to her within the prohibited degree. Mst. Nasim Akhtar challenged this order in revision in the High Court. It was held by a learned Judge-in-Chamber that keeping in view the concept of the Hudood Laws it is in the evidence that her surety should not be that person who may latter hold out the cancellation of her surety bond as a threat to her and thus induce and coerce her to lead immoral life. The order impugned in revision was modified to the above extent with a direction that the trial Court will satisfy itself that the surety if not related to the petitioner will not lead her astray and was a respectable and responsible citizen. (v) Mst. Zahida Khatoon v. The State 1984 S C M R

687. Mst. Zahida Khatoon, charged with serious offence under Ordinance VII of 1979 was allowed bail with a condition that she shall be released on the bail bond of her father. The said condition was challenged in the Supreme Court on the basis of the judgments in case of Mian Mahmood Ali Qasuri, Abdul Ahad, Mst. Nasim Akhtar and Maulana Fateh Muhammad. Their Lordships did not consider it necessary to decide the said point and dismissed the petition for bail of Mst. Zahida Khatoon because of her conduct in her insistence that none of her relations within prohibited degree should act as her surety. In the opinion of their Lordships it lead to a reasonable supposition that she might reside with Haq Nawaz while the question of alleged marriage with him was still sub judice. A perusal of the above judgments would show that in peculiar circumstances of Hudood cases against women accused, the conditions of the kind imposed in the impugned orders were approved and not set aside.

8. The question of imposition of condition regarding the acceptance of bail bonds can be examined from another angle as well. A bail to an accused is always granted on certain implied, conditions. As for example that he will join investigation of the case or tat he will not temper with the prosecution evidence or that he will not by misusing the concession of bail try to prolong the proceedings in trial of the case and as held in above-noted judgments that he will not or is not likely to repeat the offence with which he has been charged. The legal condition of bail is provided in section 499, Cr. P. C. which require him to appear in Court or before the Police Officer at the time and place as directed in the bail order. There can be, therefore, express as well as implied conditions of bail. If extraneous condition is imposed on the bail order then it would mean that if the conditions were not fulfilled by the accused, he would have to be refused bail. Such like conditions are not permitted by the provisions of sections 496, 497 and 498, Cr. P. C. S ch conditions could be visualized if there is an order of incorporating a condition in the bail bond and surety bond itself or to restrict or limit the movement of an accused after his release from prison or cash deposit of the amount of bail bond and surety. or such other condition which would be required to be fulfilled by the accused before his release on bail from. prison. Such' like conditions could obviously be not imposed in a bail order. However, any condition specifying the person who should stand surety for the accused could be imposed because such condition does not relate to the provisions of sections 496, 497 and 498, Cr. P. C. In criminal cases specially cases involving offences under Hudood Ordinance while allowing bail to a woman accused such like condition could be imposed; firstly, in order to ensure presence of accused in proceedings of the trial; secondly, to provide protection to her person which is so necessary in view of the peculiar system of our society specially the conditions prevailing in villages where most of the women are illiterate and enjoy little protection from various hazards; and thirdly, to ensure that she of her own or at the instance of any criminal does not again indulge in the offences with which she is charged.

9. The two impugned orders do not in any way impose a condition on the bail order. In my view, there is no illegality in the two impugned orders which specify a particular person to stand surety on behalf of the respective petitioners.

10. During arguments in Criminal Revision No. 112 of 1985 the learned counsel for the petitioner suggested that instead of the father of Mst. Pathani, one Ghulam Haider son of Muhammad Musa caste Majhota. who claimed to be the son of the maternal-uncle of Mst. Pathani petitioner or Jan Muhammad son of Bakhsh, a maternal-uncle in brotherhood, or Shafi Muhammad Lambardar or Usman Chairman son of Allah Dad be permitted to stand surety for Mst. Pathani, petitioner. I am not to prepared to accept these four persons suggested by the learned council as surety on behalf of Mst. Patbani. They are not related to her within the prohibited degree. Similarly, in Criminal Revision No. 138 of 1985 the learned counsel suggested that instead of Mst. Jindoo complainant, a brother of Mst. Shahnaz Bibi petitioner be permitted to stand surety on her behalf. Muhammad Khan is also one of the real brothers of Atst. Shahnaz petitioner. I, therefore, modify the impugned order dated 3-7-1985 to the extent that the surety on behalf of Mst. Shahnaz petitioner may be furnished either by Mst. Jindoo or by Muhammad Khan, a brother of Mst. Shahnaz. It may be observed that Mst. Shahnaz is aged only about 12 years and under section 552, Cr. P. C. can be compelled to accompany her real mother Mst. Jindoo.

11. It may finally be observed that even if for the sake of arguments it is assumed that there was no condition specifying a particular surety for an accused, then also the Court before whom the bail bond and the surety bond is produced can reject the said surety bond and can also insist on a particular satisfactory surety before accepting the bail bonds and the surety bonds submitted on behalf of the accused in compliance with the unconditional bail order. Thus, it will make no difference whether any condition for a specific surety is imposed or not.

12. In view of the above discussion, I find no merits in these petitions which are accordingly dismissed. M. B. A.??????? Petitions dismissed.